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ELCPartially Allowed· [2014] KEELC 260 (KLR)

Antony Muli t/a Mutembei Mathoka General Store v Kilalani Farmers Co-operative Society Ltd (? 467 of 2014) (Environment and Land) [2014] KEELC 260 (KLR)

High Court of Kenya (Environment and Land Court)
7 July 2014
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a landlord's eviction and massive rent hike, but only because the tenant agreed to pay higher interim rent while a tribunal decides the dispute.

What this practically means

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Executive summary

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The Applicant/Tenant moved the Court by Notice of Motion dated 15th April 2014 under sections 4 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, seeking preservation of the status quo and restraint of eviction, distress, or interference with his quiet possession of Machakos Town Block 11/261. He complained of an inordinate rent increase from Kshs. 21,000/= to Kshs. 300,000/= by a letter of 20th December 2013 effective 1st January 2014, followed by threatened and actual distress by auctioneers, while references were pending in the Business Premises Rent Tribunal. The Respondent/Landlord opposed, contending that the Court lacked territorial and statutory jurisdiction, that the Applicant was forum-shopping given identical pending Tribunal cases, that the tenancy had been validly terminated by notice dated 16th November 2012, and that it needed possession to complete approved renovations funded by a Co-operative Bank loan. The Court first held that it had jurisdiction: the tenancy is a controlled tenancy, the Tribunal cannot grant injunctions, and the Act does not oust the Court's jurisdiction under Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act. On the injunction, applying Giella v Cassman Brown, the Court found a prima facie case since the rent-increase notice gave only a few days' notice contrary to section 4, but held that any excess rent paid would be refundable, so no irreparable harm was shown. The Court stayed the suit pending the Tribunal cases (Nos. 22, 36 and 37 of 2012), granted a conditional injunction maintaining quiet possession upon payment of interim rent of Kshs. 90,000/= monthly from July 2014, allowed liberty to apply, and ordered costs of the motion to be in the cause.

Key legal issues

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01

Jurisdiction of the Court over a controlled tenancy dispute where references are pending in the Business Premises Rent Tribunal

Holding

The Court has jurisdiction to entertain the application, particularly as the Tribunal cannot grant injunctions, but the court in its discretion stayed the suit pending the Tribunal's determination of the tenancy's status

Reasoning

The tenancy is a controlled tenancy under section 2 of the Act. Following Caledonia Supermarket, the Tribunal lacks power to grant injunctions, so this Court is the proper forum. However, the Act does not oust the court's jurisdiction under Article 162(2) and section 13 of the Environment and Land Court Act; the court may defer to the Tribunal where appropriate, and here the substratum of the dispute - the status of the tenancy - falls for the Tribunal, which is now operational.

p. 5
02

Whether the Applicant established conditions for a temporary injunction

Holding

A prima facie case was established because the rent-increase notice gave only a few days' notice contrary to section 4, but no irreparable damage not compensable in damages was shown, so the injunction was granted only conditionally with interim rent fixed at Kshs. 90,000/= per month

Reasoning

Applying Giella v Cassman Brown, the invalid notice under section 4 established a prima facie case. However, the Respondent can refund any excess rent received over Kshs. 21,000/=, so damages would suffice. Balancing fairness - the rent was fixed in 1999, 15 years earlier - the court imposed a reasonable rent calculated at 10% yearly increment from 1999, and conditioned the injunction on its payment.

p. 5

Legal principles established

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  • The Business Premises Rent Tribunal has no jurisdiction to grant injunctions; the proper forum for an injunction relating to a controlled tenancy is the High Court/Environment and Land Court
  • The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act does not oust the Environment and Land Court's jurisdiction under Article 162(2) and section 13 of the Environment and Land Court Act
  • A landlord altering a controlled tenancy term (including rent) must serve at least two months' notice in the prescribed form specifying grounds, per section 4 of the Act

Court orders

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  1. 1.The suit is stayed pending the hearing and determination of Tribunal Case No. 22 of 2012, Tribunal Case No. 36 of 2012, and Tribunal Case Number 37 of 2012 in the Business Premises Rent Tribunal
  2. 2.Pending determination of the said Tribunal cases, status quo to be maintained: the Respondent/Landlord is restrained from evicting, levying distress or interfering with the Applicant/Tenant's quiet possession of Machakos Town Block 11/261, on condition that the Applicant pays monthly rent of Kshs. 90,000/= with effect from July 2014
  3. 3.The parties shall be at liberty to apply
  4. 4.The costs of the Notice of Motion dated 15th April 2014 shall be in the cause

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsections 2, 4, 12(1)(b) & (m), 12(4)
  • Constitution of Kenya, 2010Articles 162(2), 165
  • Environment and Land Act (Environment and Land Court Act)section 13

Cases cited (6)

  • Moses N. Gitonga & Another vs George Gatheca Kinyanjui & Another
    (2014) eKLR
  • Imani & Another vs Hasham Lalji Properties Ltd
    2014 eKLR
  • Mega Fries Ltd vs Mukesh Kumar Velji Salva & 3 Others
    2005 eKLR
  • Caledonia Supermarket Ltd v Kenya National Examination Council
    (2000) EA 352
  • R. vs Business Premises Rent Tribunal & Another ex parte Davies Motor Corporation Limited
    (2013) eKLR
  • Giella – v – Cassman Brown & Co. Ltd.
    [1973] EA 358
Jurisdiction invoked
Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act; Articles 165 and 162 invoked by the Applicant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Antony Muli t/a Mutembei Mathoka General Store v Kilalani Farmers Co-operative Society Ltd (? 467 of 2014)  (Environment and Land) [2014] KEELC 260 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/260/eng@2014-07-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.